A former public governor repeatedly warned NHS managers that their handling of the Darlington nurses’ changing-room case risked echoing governance failures exposed by the Post Office Horizon Inquiry and the Countess of Chester scandal, evidence heard today at Newcastle Employment Tribunal has revealed.
The evidence is contained in a witness statement from Stephen Twist, a former public governor of County Durham and Darlington NHS Foundation Trust.
His statement was released after its contents were presented in open court during a hearing concerning the legal costs incurred by the nurses in their successful case against the Trust.
Mr Twist’s evidence records an extensive series of questions and warnings that he raised with senior Trust figures between June and December 2024.
These concerned the management of the dispute, oversight of legal risk, the potential cost to the NHS, the availability of mediation and whether governors were being prevented from subjecting the Trust’s decisions to proper scrutiny.
In November 2024, Mr Twist expressly referred Trust leaders to lessons emerging from the Post Office Horizon Inquiry. He urged the Trust to obtain specialist counsel’s opinion on the merits of the case and possible routes to resolution, rather than relying solely on advice from its retained solicitors.
The following month, he warned against any appearance that discussion of the dispute was being suppressed, drawing attention to criticisms of governance arising from the handling of sensitive concerns at the Countess of Chester Hospital.
Despite those warnings, the Trust continued defending the proceedings through a three-week final hearing in October and November 2025.
Following a landmark ruling in January 2026 that found the nurses had been unlawfully harassed and discriminated against, it emerged that the Trust had spent £1.25 million of public money defending an unlawful policy that permitted men to access women’s changing rooms.
The case has raised serious questions about the stewardship of NHS resources and the cost of pursuing policies subsequently found to be unlawful.
The nurses are now seeking an order requiring the Trust to pay 90 per cent of their legal costs. They argue that the Trust’s continued resistance became unreasonable and that a substantial proportion of the expense associated with the litigation could have been avoided.
The Trust is contesting the costs application today before Employment Judge Seamus Sweeney.
Former governor raised concerns within days of learning of dispute
Mr Twist was elected as a public governor of the Trust in January 2023. During his three-year term, which ended on 31 January 2026, he served on the Council of Governors, became Chair of its Audit and Governance Subcommittee, and chaired or moderated the Organ and Tissue Donation Committee.
His statement says that a Trust member approached him in June 2024 about the conflict involving nurses in the Day Surgery Unit at Darlington Memorial Hospital and the Trust’s changing-room arrangements.
Mr Twist considered the matter to raise serious questions of governance because of its possible implications for staff welfare, litigation, finance, patient care and the Trust’s reputation.
On 25 June 2024, he asked the Trust what solutions were available to provide female staff with the privacy they were seeking. He also questioned whether the Trust was prioritising a policy objective over the emotional cost to the nurses.
According to his evidence, the Trust’s Head of Communications asked him the following day to remove a social-media post referring to a constituent’s concerns. The communication also requested that governor briefings and discussions be managed internally rather than in the public domain.
Mr Twist removed the post as requested but asked to be kept informed, stating that his female constituent appeared “very concerned about the issue”.
Warnings about staffing, patient care and financial liability
On 15 July 2024, Mr Twist wrote to the Trust ahead of a Council of Governors meeting.
He warned that the dispute could have far-reaching consequences for the Trust, affecting nurse recruitment and staffing levels, increasing its exposure to litigation, placing further pressure on its budget, and damaging its reputation. He also raised concerns about the potential impact on health and safety, waiting times, and ultimately the quality of patient care.
He asked whether the Trust had received legal advice on liability and possible resolution, whether it had acted in accordance with that advice, and what assessment had been made of the potential financial consequences.
He also asked whether a health and safety assessment had been undertaken in relation to the practical application of the Trust’s policy.
Mr Twist rejected the suggestion that the existence of legal proceedings prevented governors from examining the wider governance issues in private. He said that the matter had become sufficiently serious to require oversight and challenged the Trust to identify the non-executive director responsible for it.
When Mr Twist sought a further update in September 2024, the Trust said that the matter remained an active case progressing through both its internal procedures and the legal system. It informed him that a non-executive director would be the nominated point of contact for questions from governors and non-executive directors.
“Pragmatic solution” had not produced an agreed resolution
In October 2024, Mr Twist asked whether an agreed resolution had been reached, whether the Trust had obtained updated advice about litigation risk and costs, and whether it had considered mediation or other forms of alternative dispute resolution.
The director replied that alternative changing facilities had been provided and that the Trust regarded this as a workable and pragmatic solution.
He also said that the Trust was continuing to take advice from Capsticks, its retained legal advisers, including on risk and costs. He added that the Trust had an open mind about mediation and other means of resolving the case.
Mr Twist remained concerned, arguing that a solution proposed by the Trust was not the same as an agreement reached with the nurses. He warned that the absence of a negotiated compromise meant the litigation risk remained unresolved.
On 3 November 2024, he wrote:
“My aim is to avoid criticism of the Trust should resolution options be missed and this matter be litigated. I fear that I have unresolved concerns relating to the CDDFT management of the issue. Given its profile, CDDFT will need to demonstrate impeccable dispute management to avoid judicial criticism. At this stage on current information I do not have that reassurance.”
Post Office Horizon warning
In the same correspondence, Mr Twist explicitly referred Trust leaders to phase six of the Post Office Horizon Inquiry.
He said that the inquiry had highlighted the importance of responsible oversight of legal risk at board level and the need for independent written advice to support transparency and accountability.
Mr Twist recommended that the Trust seek specialist counsel’s opinion, covering not only its potential liability but also the merits of the dispute and the full range of options for resolving it.
He also drew attention to court authorities concerning mediation and the obligation on public bodies to consider alternative dispute resolution, particularly where public money is involved.
Mr Twist emphasised that he was not expressing a view on the underlying disagreement between the Trust and the nurses. He said that his concern was solely about governance, dispute management and avoiding criticism of the Trust if reasonable opportunities for resolution were missed.
Countess of Chester comparison
On 2 December 2024, Mr Twist again raised the question of governance oversight.
He said that Trust members and members of the public were pressing him for openness and rejected the proposition that the dispute was simply an operational management matter.
His email warned:
“In light of the criticisms of failure of governance arising in the Countess of Chester’s handling of sensitive issues, I wish to avoid any suggestion of suppression of discussion.”
The director disputed the comparison. In a reply dated 13 December 2024, he said that he found Mr Twist’s reference to the Countess of Chester Trust “worrying” and maintained that discussion was not being suppressed.
The director argued that the dispute was a management issue being handled by the relevant executive directors, with both himself and the Board sighted on it. He said that he did not believe discussion should extend beyond executive management and non-executive directors.
Mr Twist responded that restricting consideration of the matter in that way risked denying governors the opportunity to perform proper due diligence.
He said that the controversy potentially affected finance, staffing and ward safety, all of which he considered legitimate matters for the Chair of the Audit and Governance Subcommittee to examine.
Mr Twist sought a review after interpreting the Trust’s position as suggesting that he should cease pursuing the issue on behalf of Trust members and Darlington residents. He asked the Trust to explain how that position was compatible with his responsibilities as a public governor and how it differed from “a suppression of discussion”.
Trust’s costs estimated to have reached £1.25 million
Mr Twist’s evidence also reveals his efforts to establish the financial consequences of the Trust’s approach. In correspondence with the Trust, he sought information on how much the dispute had already cost and what future expenditure was anticipated.
He also questioned whether the Board considered its approach to be a proportionate use of funds that would otherwise be available for healthcare, whether non-executive directors had reviewed the relevant health and safety assessment, and what work had been undertaken to manage and resolve the conflict.
In September 2025, Mr Twist submitted a Freedom of Information request seeking details of the Trust’s expenditure.
The Trust disclosed that, based on legal-fee invoices, its litigation costs at that point stood at £275,850. It declined to provide its estimate of future expenditure or its contingency for an adverse judgment, relying on exemptions associated with legal privilege and the conduct of the proceedings.
Earlier this year, it was reported that the Trust had paid £603,000 defending a policy that allows men into female staff changing rooms.
Following the payment of substantial damages to the nurses in June 2026, it was estimated that the Trust’s total costs had risen again to approximately £1.25 million.
The nurses will argue that a significant amount of this expenditure could have been avoided if the Trust had responded differently to the legal, regulatory and governance warnings it received before the final hearing.
Evidence supports nurses’ costs application
Mr Twist’s evidence was released after it was presented in open court as part of the nurses’ application for costs. Their lawyers argue that his correspondence shows the Trust received clear, repeated and detailed warnings about the need for independent oversight of legal risk, the availability of mediation and other forms of alternative dispute resolution, and the danger of escalating legal costs.
They further contend that the warnings highlighted the potential consequences for staff welfare and public confidence, the proper constitutional role of governors, the responsible use of NHS resources, and the risks associated with restricting internal scrutiny.
The nurses’ application also points to a number of other developments which they say should have prompted the Trust to reassess its position.
These include a March 2025 warning from the Royal College of Nursing concerning the legal requirement to provide appropriate changing facilities, criticism from the Tribunal in April 2025, the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers, and the findings of the Trust’s own internal investigation.
The nurses say that the Trust nevertheless continued to defend its position and rejected proposed settlement terms in October 2025.
“The warning signs could not have been clearer”
Bethany Hutchison, President of the Darlington Nursing Union and one of the successful claimants, said:
“Stephen Twist’s evidence shows that the warning signs could not have been clearer.
“A governor charged with representing the public was asking the questions that any responsible NHS organisation should have been asking. What was the legal risk? What would this cost the taxpayer? Had mediation been properly considered? Were the nurses’ welfare and dignity being protected? Was the Board receiving sufficiently independent advice?
“Instead of resolving the central problem, the Trust pressed ahead with litigation. The Tribunal ultimately upheld our core complaints and found that we had been subjected to harassment and indirect sex discrimination.
“This was never the outcome we wanted. We wanted our employer to listen, respect the dignity of female staff and provide appropriate facilities where we could change in privacy.
“The Trust had repeated opportunities to resolve this dispute. We believe it must now be held accountable for the substantial legal costs that could and should have been avoided.”
“A failure to learn from repeated public scandals”
Andrea Williams, Chief Executive of the Christian Legal Centre, which has supported the nurses, said:
“This evidence raises profound questions about governance, accountability and the use of public money.
“Stephen Twist did not approach the Trust as a partisan in the underlying dispute. He approached it as an elected public governor concerned about process, legal risk, staff welfare, financial exposure and reputational damage.
“He explicitly warned managers about lessons emerging from the Post Office Horizon Inquiry and the governance failures associated with the Countess of Chester controversy. He urged independent scrutiny, specialist legal advice and meaningful consideration of mediation.
“Those warnings appear to have been met not with openness, but with repeated attempts to classify the controversy as a management matter beyond wider governor discussion.
“The lesson of recent public scandals is that institutions descend into failure when legitimate concerns are marginalised, internal challenge is resisted and legal processes become a substitute for honest engagement.
“The Tribunal has already determined that the nurses were unlawfully harassed and indirectly discriminated against. The costs hearing is now examining the financial consequences of the Trust’s decision to continue fighting the case despite the growing body of warnings and evidence against its position.
“NHS leaders are custodians of public money. They must be held accountable when poor governance and an unwillingness to listen expose staff and taxpayers to unnecessary litigation.”
The hearing continues….
he’s the terror of his work’s HR department because he won’t accept that the 24 year old she/they intern they’ve put in charge of LGBT matters has a better grip on what’s needed than he does…
